• August 12, 2021

Which Circuit Judges and Circuit Courts feed the majority of SCOTUS clerks? – Reason.com

David Lat answers the questions we all want to know. In your excellent Substack site, David breaks down which circuit judges and circuit courts have served the most clerks to the Supreme Court in the past five years. (If you haven’t subscribed, you should.)

There is a three-way tie for first place between Judges Sutton, Pryor and Kavanaugh. They are each 13. It is impressive that Kavanaugh is still feeding employees, since he left the DC circuit nearly three years ago. Sutton and Pryor are giants. Columbus and Birmingham aren’t exactly the most desirable places for law school graduates to work as secretaries (I really like both cities), but these two lawyers have built court fiefdoms in their backyards. Congratulations to them.

There is a two-way tie for second place between Judges Katzmann and Srinivasan. They are each 12. Judge Katzmann passed away, so their totals are likely to decrease in the future. At this point, Judge Srinivasan is the undisputed feeder of Democratic SCOTUS. It’s not even close. Although with only three Democratic justices, it will be difficult to maintain these numbers. All four RBG seats will now be filled by ACB.

Judge Griffith is sixth with 10. He retired from the DC circuit, so his totals should drop over time.

There is a four-way tie for seventh between Katsas, Thapar, Wilkinson and Garland. They each have 9. Katsas’s numbers are truly impressive, as he was only appointed to the Court in December 2017. If we assume that Katsas has four clerks per year, he has had (roughly) 16 legal clerks. More than half of them worked in the Supreme Court. Wow! Judge Thapar’s range is also impressive. He was only elevated to Circuit Court in 2017, but many of his district court clerks moved to higher positions. Judge Wilkinson has been a judge for almost 40 years. The fact that he only has nine SCOTUSs in the past five years suggests their impact is waning. Then there’s former Judge Garland, whom I called the Susan Lucci of the Supreme Court. (The closest you will get to One First Street will be when you discuss a softball case like AG.) Garland only had 9 employees. But, again, he manages to install his favorite employees in the highest positions of the executive branch. This same week, Biden nominated Garland’s secretaries as SG (Elizabeth Prelogar) and United States Attorney for SDNY (Damien Williams).

Finally, there is a four-way tie for eleventh place. Judges Kethledge, O’Scannlain, Rakoff and Tatel. Each has 8. Judge Tatel has assumed high-level status, but his influence must remain constant if he maintains a full complement of clerks. (We have not yet nominated for his seat.) District Judge Rakoff used to feed Katzmann secretaries. That pipe is now gone. Judge O’Scannlain has been in the senior category for nearly five years, but he is still bringing his fair share to the Court. Judge Kethledge, the other Kennedy secretary who could have filled the vacancy, completes the dominance of the Sixth Circuit.

David Lat also calculated how many SCOTUS employees each circuit fed to the Supreme Court. I think the most useful measure is “clerks by authorized magistracy.”

The DC circuit is way ahead with nearly 7 clerks for every authorized magistrate. Kavanaugh, Srinivasan, Griffith, Garland, Katsas, and Tatel were stars. But three of those judges are now out of court. Given the turn to the left, it is unclear whether the DC circuit can maintain its supremacy. I don’t know how many Millett and Pillard employees will be hired by the new Roberts Court. Judges Rao and Walker can make up for some of that deficit.

The Second Circuit ranks second with 2 clerks by authorized trial. Unfortunately, with Judge Katzmann out of court, it’s unclear who else can rise to the occasion. Perhaps judges Park and Menashi.

The Sixth Circuit ranks third with 1.88 clerks per judge. Very soon, the Sixth Circuit should overtake the Second Circuit. And in 5 years or so, you can give the exhausted DC circuit a run for supremacy. Justices Sutton, Thapar and Kethledge are in their prime.

The Eleventh Circuit ranks fourth with 1.75 clerks per judge. Judge Pryor is leading the group himself, although Judges Grant and Newsom may begin to rise through the ranks.

After fourth place, the numbers drop sharply. Wow, how the Ninth Circuit fell. Reinhardt is gone. Kozinski is gone. And Obama’s nominees will have little standing with the conservative court. The Tenth Circuit only made the list thanks to then-Judge Gorsuch. It should fall soon. My home circuit, the Fifth, is really weak. Fortunately, some of the new Trump appointees will move up the line: Ho, Willett, Oldham, Duncan and others.

In total there are three circuits missing from this list: the first, the third and the eight circuits. I cannot think of any recent appointments to those courts that could upset the balance. It is sad that SDNY and DDC produced more SCOTUS clerks than three courts of appeals. But there it is, we have a huge imbalance.

Thanks to David for running the numbers.

Leave a Reply

Your email address will not be published. Required fields are marked *